Argued May 6, 1873
Decided May 13, 1873
George E. Ripsom for the appellant.
Edward Harris for the respondent.
The evidence did not show that the ditches made by the defendant diverted water into the stream upon which the defendant's saw-mill was situated, which had any other outlet than into such creek. Had that been proved, and that the plaintiff sustained an injury from an increased quantity flowing in the stream he would have been entitled to recover therefor. By cutting the ditches through the bluffs the water reached the stream by a shorter and more direct course than it before had done. The defendant's ditches discharged the water into the stream nearly two miles above the plaintiff's mill. They were nearly two miles in length, diverted running water communicated with no stream except at the point where they discharged into the creek upon the land of the defendant. They conducted the surface water from considerable of an area of low swampy land, and in high water discharged into the stream comparatively a large quantity of water, caused the water at such times to rise higher at the defendant's mill than it otherwise would, and to some extent prevented the use of the mill by back water, and at other times reduced the quantity of the water flowing in the stream so that it was not sufficient to operate the machinery. This gave no right of action to the plaintiff. The defendant had an absolute right to drain the surface water upon its land into the stream which was its natural outlet through ditches constructed upon its own land, although the quantity of water in the stream was thereby increased in times of high water, and diminished at other times. (Angel on Water-courses, 6th ed, § 108 a to 108 s.) The authorities in this country and England upon this subject are collected and revised by the author, and clearly establish the right claimed by the defendant. ( Goodale v. Tuttle, 29 N.Y., 459; Rawstron v. Taylor, 11 Exch., 369; Gannon v. Hargadon, 10 Allen, 106; Miller v. Laubach, 47 Penn., 154.) A proprietor having the right to reclaim his land by draining the surface water therefrom by ditches discharging into a stream running thereon which is the natural outlet of the water, the object of doing so, whether for the erection of buildings, agriculture or constructing a railroad thereon, is wholly immaterial. He may so drain whenever disposed to do so irrespective of the object.
The counsel for the appellant cites Clinton v. Myers ( 46 N Y, 511), as in conflict with this view. There is no such conflict. The right of a proprietor to drain surface water from his land was not at all involved in that case. There the question was whether a proprietor had a right to erect a dam across a stream so as to detain a large quantity of water and store the same for future use, and discharge the same in quantities adapted to his own machinery but not to that of a proprietor upon the stream below. Held, that he had no such right. The stream in question was a permanent stream, and whether formed by the union of the outlets of numerous springs in the vicinity of the dam or had a more remote origin was immaterial. In the present case the surface water was discharged through the ditches into the stream. There is in the case no question as to the rights of a proprietor of lands situate lower to be protected from a discharge of surface water in unusual quantities at particular points upon his land by artificial structures upon land situated higher, and, therefore, that will not be considered.
The nonsuit was rightly granted, and the judgment of the General Term affirming the judgment entered thereon must be affirmed.